Singh v. Holder

• Decision Date: 14 May 2009
• Docket Number: No. 08-20065 Summary Calendar.,08-20065 Summary Calendar.
• Citation: 568 F.3d 525
• Parties: Satbir SINGH, Plaintiff-Appellant, v. Eric H. HOLDER, Jr., U.S. Attorney General; Janet Napolitano, Secretary, Department of Homeland Security; Sharon A. Hudson, District Director U.S. Citizenship and Immigration Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

568 F.3d 525

Satbir SINGH, Plaintiff-Appellant, v. Eric H. HOLDER, Jr., U.S. Attorney General; Janet Napolitano, Secretary, Department of Homeland Security; Sharon A. Hudson, District Director U.S. Citizenship and Immigration Services, Defendants-Appellees.

No. 08-20065 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

May 14, 2009.

Clarissa Guajardo, Law Offices of Clarissa Guajardo, Houston, TX, for Singh.

Christopher Westley Dempsey, U.S. Dept. of Justice, OIL, DCS, Washington, DC, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before DAVIS, GARZA and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Plaintiff-Appellant Satbir Singh ("Singh") appeals the district court's order awarding summary judgment to Defendants-Appellees Eric H. Holder, Jr., Janet Napolitano,¹ and Sharon A. Hudson (collectively "Defendants") on his challenge to the rejection of his Application for Naturalization. He argues that the district court erred in concluding that the Immigration and Naturalization Service ("INS") properly found that he is statutorily ineligible for naturalization as a U.S. citizen. For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Singh, a native and citizen of India, entered the United States in 1987. On October 29, 1987, a Virginia jury found him guilty of the felony of unlawful wounding. See VA.CODE ANN. § 18.2-51. After his conviction, but before his sentencing, Singh fled the jurisdiction and ultimately the country. He was recaptured and taken into custody when he attempted to re-enter the United States in 1998. On May 15, 1998, a Virginia court sentenced him to fifteen months' imprisonment for his unlawful wounding conviction.

After serving his sentence, Singh applied for naturalization, filing Form N-400 with the INS. INS District Director Sharon A. Hudson reviewed Singh's application and denied it on the ground that he was convicted of an aggravated felony on or after November 29, 1990, as defined in the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). In her written opinion, Hudson concluded that unlawful wounding constitutes an aggravated felony and that the date the court sentenced Singh—May 15, 1998—not the date on which the jury rendered its verdict, was the "date of conviction" for INA purposes. Thus, Singh failed to meet his burden of proving good moral character, see 8 C.F.R. § 316.10(a)(1), and the INS deemed him permanently ineligible for naturalization.

Singh challenged this determination in the U.S. District Court for the Southern District of Texas, arguing that (1) unlawful wounding under Virginia law is not an aggravated felony and (2) the date of his conviction was October 29, 1987—the date the jury found him guilty—not May 15, 1998. The district court rejected Singh's arguments and granted Defendants' motion for summary judgment. Singh timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over the district court's final order granting Defendants summary judgment under 28 U.S.C. § 1291.

We review de novo a district court's award of summary judgment. Nichols v. Enterasys Networks, Inc., 495 F.3d 185, 188 (5th Cir.2007). Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-moving party." Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). We view the facts in the light most favorable to the nonmovant and will draw all inferences in his favor. See id. (citing Baker v. Am. Airlines, Inc., 430 F.3d 750, 753 (5th Cir.2005)).

III. DISCUSSION

Under the INA, a person cannot show the good moral character required for naturalization if, inter alia, he has been convicted of an aggravated felony on or after November 29, 1990. 8 U.S.C. § 1101(f)(8); 8 C.F.R. § 316.10(b)(1)(ii). On appeal, Singh argues that the district court erred in concluding that (1) his unlawful wounding conviction constitutes a conviction of an aggravated felony and (2) the date of his conviction was May 15, 1998, which is after the relevant statutory date of November 29, 1990. We address each argument in turn.

A. Conviction of an Aggravated Felony

The INA defines "aggravated felony" as including "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).

A "crime of violence," as defined in 18 U.S.C. § 16, is

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

"In determining whether an offense has as an element the use, attempted use, or threatened use of physical force against the person of another, this court uses the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and examines the elements of the offense, rather than the facts underlying the conviction." United States v. Mendoza-Sanchez, 456 F.3d 479, 482 (5th Cir.2006). The categorical approach similarly applies to our determination as to whether an offense qualifies as a crime of violence under § 16(b). See Nguyen v. Ashcroft, 366 F.3d 386, 390 (5th Cir.2004).

A jury convicted Singh of unlawful wounding under VA.CODE ANN. § 18.2-51. This section provides,

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.

Thus, it defines two offenses. In Virginia, a Class 3 felony is punishable by "a term of imprisonment of not less than five years nor more than 20 years," and a Class 6 felony by "a term of imprisonment of not less than one year nor more than five years." VA.CODE ANN. § 18.2-10(c), (f).

Singh asserts that his unlawful wounding conviction does not qualify as a crime of violence for three reasons. First, Singh cursorily challenges the validity of his unlawful wounding conviction. However, Singh has not alleged that his conviction has been overturned, and he may not collaterally attack the legitimacy of the conviction here. See Brown v. U.S. INS, 856 F.2d 728, 731 (5th Cir.1988); see also Zinnanti v. INS, 651 F.2d 420, 421 (5th Cir.1981) ("Once the [state criminal] conviction becomes final, it provides a valid basis for deportation unless it is overturned in a judicial post-conviction proceeding.").

Second, Singh argues that his unlawful wounding conviction, if valid, was for a misdemeanor and therefore cannot be an aggravated felony. Citing the Virginia Supreme Court's decision in Banner v. Commonwealth, 204 Va. 640, 133 S.E.2d 305 (1963), Singh argues that notwithstanding his felony conviction under VA. CODE ANN. § 18.2-51, unlawful wounding is not a crime within the scope of Virginia's Maiming Act. However, this contention also amounts to an impermissible collateral attack on the validity of Singh's Virginia conviction, which we reject.²

Finally, Singh notes that this court has applied a modified categorical approach to find an aggravated battery conviction under Kansas law not to be an aggravated felony. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 467-70 (5th Cir. 2006). In Larin-Ulloa, we observed that the applicable statutory section could be divided into two parts and that a violation of either would constitute an aggravated battery. Id. at 465. The petitioner "posit[ed] several hypothetical scenarios that would arguably involve violations of the second part [of the statute] but that do not involve the use of physical force" so as not to constitute a crime of violence. Id. at 466-67. We agreed that a person could violate the second part of the statute without using physical force and that, therefore, a violation of that section of the statute would not amount to a crime of violence. Id. Because the record did not indicate which section of the statute the petitioner violated, we vacated the order providing for his removal. Id. at 470.

Singh, however, does not argue that any portion of the unlawful wounding statute under which he was convicted can be violated without using force sufficient to render the violation a crime of violence.³ He offers no hypothetical situations in which a person could commit an unlawful wounding that does not constitute a crime of violence, nor does he even attempt to parse the statute's language. Moreover, Singh has utterly failed to raise any argument that "the conduct encompassed by the elements of the offense, in the ordinary case, [does not] present[ ] a serious potential risk of injury to another." See James v. United States, 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also Perez-Munoz v. Keisler, 507 F.3d 357, 363 (5th Cir.2007) (quoting James, 550 U.S. at 208, 127 S.Ct. 1586). Accordingly, he has waived any such argument.⁴ See United States v. Beaumont, 972 F.2d 553, 563 (5th Cir.1992) ("Failure of an appellant to properly argue or present issues in an appellate brief...